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Lord Carter: My Lords, I am extremely grateful to the Minister for giving way. We are discussing the Motion that has been moved by the noble Lord, Lord Swinfen. We anticipated that the Motion would be dealt with and the Minister would then move the regulations.

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I see nods in a certain direction. Perhaps we should stick to the Motion in the name of the noble Lord, Lord Swinfen.

Lord Mackay of Ardbrecknish: I was advised that I should start in that way. After we have dealt with my noble friend's Motion I shall then move the two Motions which stand in my name.

I do not intend to make a lengthy speech because I recognise that a number of your Lordships are eager to contribute to the debate. In any event, the detail of the provisions of the regulations has already been explained in the guide Notes on Regulations published last November.

I should like to recall the important context in which the changes are being introduced. Invalidity benefit is the fastest growing contributory benefit. Expenditure has more than doubled in real terms over the past 10 years from £3.1 billion to £7 billion in 1993-94. That dramatic growth has come at a time when the nation as a whole has been getting healthier. No responsible government could let that continue. If we did, spending could increase to up to £10 billion by the end of the century. I notice that my noble friend did not choose to address that particular aspect, but perhaps he does not consider that raising the money and the taxpayers' interest in all of this is of any relevance.

Anyone committed to controlling that growth would need to consider the system of medical control. As my noble friend pointed out, the present system includes non-medical factors such as education, skills and experience. Those may indeed affect the ability to get a job, dare I say at any age, but they are not a cause of medical incapacity. The inclusion of those in the current assessment of incapacity is the reason invalidity benefit is going to some people for whom it was not intended, such as people who have taken early retirement or who are unemployed. That is why the new all work test specifically excludes the factors that my noble friend Lord Swinfen has asked us to include. Indeed, he said that it was wrong to ignore factors such as age, education and skills. I point out to him that incapacity benefits are intended for people who cannot work because of their medical condition. I believe that it is right to distinguish between long-term incapacity and long-term unemployment, for which other benefits are available.

Therefore, we have to be certain that the new all work test accurately measures medical incapacity for work. That is why development work has taken a period of nearly two years. During that time we conducted in-house studies, consulted widely and involved outside experts. We also carried out two major evaluation studies, using real cases to confirm that the new test would be an effective assessment of incapacity. I take this opportunity to offer my thanks for the invaluable help we received.

In devising our final proposals we addressed three particular concerns. First, we have protected the position of the most seriously ill and disabled by making them exempt from the test. Secondly, we have recognised the particular problems caused by mental illness by designing special procedures for claimants with a mental

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health problem. Indeed, my noble friend recognised that we have added mental health to the list. Thirdly, we have made provision for the small number of conditions where incapacity cannot be measured functionally. In addition, we are carrying out a major training exercise to ensure that Benefits Agency Medical Services doctors are able to apply the test effectively.

I should like to turn to the role of the GP. Although my noble friend did not mention the fact, somebody has to make these difficult decisions. He implied that they were so difficult to make that I was not sure who would ever be able to make them if he had his way and was able to devise the system that he would like. Until now the GP has been, so to speak, the gatekeeper. Of course general practitioners are well placed to give advice on a person's medical condition. However, that is not a good reason to make them gatekeepers to the benefit system. They are not trained to assess capability for work or to administer social security law. Placing such a burden on them can compromise their relationship with their patients. Accordingly, our reforms re-emphasise their role in providing information on the condition of the claimant but remove the requirement to play such an active part in the social security system. I imagine that many doctors will be happy to have the role of gatekeeper removed from them.

The new test will be applied to existing cases over the next two or three years. It will identify in a fair way the minority of people who should not be receiving incapacity benefit. Some people have been receiving invalidity benefit for many years and may be anxious. I remind them and the House—because some amazing figures have been bandied about—that the majority of people who take the new test will satisfy it. In addition, the regulations before the House provide for nearly 50 per cent. of existing claimants to be exempt from the new test.

My noble friend made much of the age cut-off of 58. When we decided on that age we wanted to be able to provide as many existing claimants as possible with a guarantee about their future entitlement. We also had to take into account the fact that a number of people aged 50 and over have been receiving benefit as a form of early retirement benefit. Between 1978 and 1993 the number of men under pension age receiving IVB rose from 430,000 to 845,000. Of those something like 230,000 were between 55 and 64, and 65,000 were between 50 and 54. While research indicates that attachment to the job market declines after the age of 50, that does not mean that the people involved suffer from some form of incapacity. Detachment from the job market may be for quite different reasons. We believe that to exclude all those people, say from 50 and over, from the all work test would effectively be to exclude the majority of existing cases and those who, as I said before, are using the system as a means of receiving benefit on early retirement.

I believe that our reforms will ensure that we have a sensible system and, importantly, an affordable system which will be sustainable for the rest of the decade and into the next century. I commend the regulations to the House.

Lord Carter: My Lords, before the Minister sits down, will he make the position absolutely clear? He

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referred to the regulations which are before the House. The regulations are not before the House. The Motion in the name of the noble Lord, Lord Swinfen is before the House. Could the position be absolutely clear? I have checked the matter. There has been some misunderstanding. We should understand that the House has to deal with the noble Lord's Motion first, and the Minister will then decide what to do with the regulations.

Lord Mackay of Ardbrecknish: My Lords, I do not propose to split hairs when there is a time problem with regard to a debate. In fact we are discussing the regulations. One cannot discuss my noble friend's Motion without discussing the regulations. I should have thought that that was self-evident.

Lord Carter: My Lords, the Minister is becoming irritable. I have taken advice. A brief made today's procedure clear. We are discussing the Motion in the name of the noble Lord, Lord Swinfen. The regulations are not before the House.

Earl Russell: My Lords, before the Minister sits down, perhaps I may ask this question. Has it not been the practice of this House for centuries that only one Question can be before the House at one time?

Lord Mackay of Ardbrecknish: My Lords, yes, indeed, only one Question can be before the House. I am sorry if I may have mixed up the procedure. However, my speech would have been the same because, frankly, one cannot address oneself to my noble friend's Motion unless one considers the instruments as a whole. I believe that I dealt with both the instruments and the reasons why I hope that the House will reject my noble friend's Motion.

7.32 p.m.

Lord Ashley of Stoke: My Lords, it is a bit rich for the Minister to complain about splitting hairs when he has brought before the House a few tiny, trivial, mere details of changes instead of substantially addressing himself to the Motion of the noble Lord, Lord Swinfen.

I thank the noble Lord for bringing the issue before the House. As there is so little time left, I propose to make a brief speech. I have to say to the Minister that the speech he made was absolutely and totally inadequate to justify regulations which will severely hit sick and disabled people.

The principle of a purely medical approach to the incapacity benefit has been disputed and derided in this place and in another place. Yet the Minister now stands up and resists all attempts to inject reasonableness into the system. It is a system which is questionable in principle and will be harsh in practice.

Someone too frightened to go out alone scores one point. I wonder which genius in the Government worked that one out? A person who sits alone for hours doing nothing scores two points—another oddball idea. The most bizarre, and even brutal, concept is that no less than 15 points—I emphasise, 15 points—are required for acceptance as "incapable of work". That is what the

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regulations state; there is no point in the Minister shaking his head. Those requirements are bereft of all humanity, devoid of understanding and incapable of dealing with the shifts and shades of mankind's condition.

Thousands of individuals and their families will suffer anxiety, wondering whether they will gain sufficient marks. A family's income can depend on the result of just one test. Most of those on invalidity benefit are known to be low wage earners; we all know that. Many have had little education. These are the people now facing the prospect of losing an income only slightly above the breadline level—but at least it was at a level which gave them minimum security. Denied that, they may even have to rely on obtaining another new, unwelcome benefit—the jobseeker's allowance.

This is a classical exercise in political cynicism. The Government are devastating thousands of ill and disabled people, cloaking their attack in the guise of improved targeting, and taking cash from disabled people for electoral bribes. That is the truth of what the Government are now doing. I believe that it is a cruel and calculated manoeuvre which reflects badly on the Government. If they push it through, I hope that their tactic backfires and blows up in their face.

7.35 p.m.

Lord Addington: My Lords, I shall speak as briefly as possible on the Motion. The noble Lord, Lord Swinfen, dealt with the matter in considerable detail and proved to my mind at least that there is a real problem.

The Motion before us replaces the words in the schedule with the following words:


    "relevant to the person's capacity to perform work of which he would otherwise have been capable".

Such a system would involve a degree of flexibility because one will have a different set of criteria for each person. Every time this House has discussed one individual's needs, in particular with regard to disabilities, we have had explained to us time and again that one must take account of that individual as a single unit. People do not fit well into schemes. The system of acquiring points will be ridiculous in effect if one takes one person's level of disability at a given time.

The noble Lord gave an example of a person in manual work who suffers an injury or some damage which means that he may then be capable of sitting behind a desk. If a skilled carpenter has bad literacy skills he cannot be expected to acquire a reasonable desk job because he would be unable to undertake such work. If he suffers an injury, he cannot work with his hands for long periods of time, no matter how good his score is in any test.

Having listened to the arguments on the Motion, I recommend that there is only one way to vote: in favour of the noble Lord's Motion.

7.37 p.m.

Baroness Darcy (de Knayth): My Lords, I, too, am grateful to the noble Lord for putting down the Motion. I congratulate him on his clear explanation of the issue and his tenacity in pursuing it. It is not just the disability

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organisations which are concerned. As the noble Lord said, the medical profession, including all the professors of rehabilitation, is extremely concerned. The noble Lord said that there were five professors of rehabilitation. I go further. There are six and they are all against it. I spoke to one of them last night. He said that, if it is to be effective, the test must address the relationship between a disabled person and the employer.

I wish to concentrate on one area which is causing much concern: that is, the people who may find themselves in the no-man's land between incapacity benefit and benefits for the unemployed. When the regulations were debated in another place on 2nd February, the Minister for Disabled People gave some reassurances at col. 1239 of the Official Report. The Minister stated:


    "If a person is judged capable by the new test and then chooses to register as unemployed, the adjudication officer in the Employment Service cannot then decide that that person is not capable of work. A claimant must, of course, be available for and actively seeking work to qualify for unemployment benefits".

The Minister went on to explain that claimants do not have to be able to do every possible type of job.

While I appreciate that assurance, I am not totally convinced, because the problem exists under the present system even though, in theory, it should not. Disability Alliance and RADAR indicate that in a joint survey. NACAB can give examples of people who are regarded as too fit for invalidity benefit being turned away from the unemployment benefit office even if they wished to sign on to preserve their right to national insurance credits.

I should like to ask the Minister some questions. I have given him notice of them as I feel that this is an area which needs more explanation. If he does not have time to answer them all during the dinner hour debate, perhaps he will write to me. I hope that he is able to answer some.

First, does the Minister agree that this no-man's land exists at present with invalidity benefit? Does he accept that under the new functional test for incapacity benefit many more people could end up in this grey area?

Perhaps I may ask some questions of detail about people who decide to appeal against a decision to withdraw their incapacity benefit. Pending their appeal, will they have to sign on or send in a medical certificate, or both? How will they be able to ensure that their national insurance record is maintained through credits? Which benefit will they be entitled to during that time? Finally—a very important point—if someone is regarded by the employment service as not being fit enough to sign on, will that person be referred back to the Benefits Agency Medical Services with a view to obtaining a second opinion to enable him or her to claim or reclaim incapacity benefit?

I look forward to the Minister's reply and I hope that he can give some encouraging answers. The big question of the appropriateness of the functional test remains and I should be even more encouraged if he would accept the Motion of the noble Lord, Lord Swinfen. In view of what the Minister has said so far,

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even the optimist in me is not hopeful, so that, if the noble Lord, Lord Swinfen, feels that he has to go to a Division, I shall support him wholeheartedly.

7.40 p.m.

Lord Mottistone: My Lords, I shall concentrate briefly on the problem of the mentally ill. I am advised by the National Schizophrenia Fellowship. Both the fellowship and I welcome the fact that at the last minute the Government have exempted those with severe mental illness from the new test of incapacity.

However, the problem is: how does one define severe mental illness? I understand that draft Benefits Agency advice suggests that the definitions should include: a need for continued psychiatric care, including sheltered residential facilities where the person receives regular medical or nursing supervision; and day care at least one day a week in a centre where qualified nursing care is available.

The problem is that many suffering severe mental illness are not in sheltered residential facilities and cannot get day care one day a week because the services do not exist in their area. Others who could have the services are not prepared to use them because of the nature of their illness. The difficulty with the mentally ill is that even severely mentally ill people are perfectly all right some of the time and some of the time they are not. However, we cannot have a stop-go process with the kind of assistance we are talking about.

In addition to all that, it is unrealistic, not to mention inhumane, to force mentally ill people, particularly severely mentally ill people, to be subjected to tests if by some process the definitions do not fit their case. They are people who cannot stand pressure, especially the kind of pressure that the tests might create; that approach would probably make them more mentally ill. So it is a difficult problem.

The National Schizophrenia Fellowship has been trying for some time to visit the Minister's department to discuss such matters but it has not been allowed to, and that distresses me. The fellowship has submitted written proposals which, happily, have resulted in the Government's amendment, including the exemption for severely mentally ill people. Perhaps the period is so short that the department has not had time to react to the proposals, but I implore my noble friend to give me an undertaking—and I hope that he will be able to do this in his reply—that as soon as practicable his department will get in touch with the National Schizophrenia Fellowship and invite it to give the practical advice from which, if possible, the definition can be devised.

7.43 p.m.

Lord Rea: My Lords, I well understand the Government's anxiety about the increase in the numbers claiming invalidity benefit over the past decade. However, their response to the problem of having a more tightly drawn or stricter test of incapacity for work is not the solution. The Government have not accepted or have turned a blind eye to the underlying cause of the increase. As a consequence of the regulations, a

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number of those at present on invalidity benefit will suffer both financially and psychologically, as my noble friend pointed out. I predict that the legislation will boomerang and do the Government no good electorally.

By moving the Motion amending the Government's legislation, the noble Lord, Lord Swinfen, is doing his party a good turn. There are votes in this. During the 1980s and early 1990s many people who were long-term unemployed were encouraged by DSS officers to obtain medical certificates from their GP if they had any form of disability, even if it was relatively mild. If work had been available, most of those people would gladly have continued to work. That is my experience and that of colleagues over a number of years, especially in the inner cities. Transferring those unemployed people to invalidity benefit made political sense to the Government at the time. The numbers of long-term unemployed went down or at least did not rise so fast. Now, however, the large bill for those on invalidity benefit has become an embarrassment.

Those facts are corroborated by some of the findings which are emerging from a research project in primary care which I am now carrying out in association with the Department of Public Health Medicine at UCL. We are looking at a random sample of the population registered with an inner city group practice. We have found that there is a steady increase in the proportion of men of working age who receive invalidity benefit as one goes down the social scale. Long-term invalidity benefit is claimed only by 2 per cent. of men in the professional classes, as classified by their present or last occupation. But there is a steady gradient in the intermediate socio-economic levels, with the rate going up until one reaches the unskilled workers at the bottom of the pile, 50 per cent. of whom receive invalidity benefit at the moment. As their work is more strenuous, it might be expected that more manual workers would claim invalidity benefit, but in fact 70 per cent. of the men in our study who were receiving invalidity benefit had non-physical complaints as their true reason for being off sick—alcohol abuse and mental ill-health being the most common.

Those men, and also some women, under 58 will become subject to the new tests. Many will probably be found theoretically to be capable of work, unless they are psychotic, or mentally retarded. But most, even of those who do not pass the test, are not capable of any work that is not manual, and there is still a great shortage of manual work. In the inner cities that is largely due to the contraction of the construction industry. So unless those people can obtain retraining—which is difficult if you are over 40 and it is difficult to change your ways if you are past 50—and unless they can be found new jobs, they will go back into the long-term unemployed pool from which many originally came. But they will receive a lower level of benefit.

The regulations amount to a pointless exercise in the present economic climate and will result in increased poverty and unhappiness. The Motion of the noble Lord, Lord Swinfen, which seeks to change the wording is a

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small step in the right direction, but even if it were accepted it would make little impact on a bad piece of legislation.

7.48 p.m.

Viscount Simon: My Lords, I have had to score out much of what I wished to say due to the time factor. I am uncertain whether or not I should mention that I have a financial interest in the following case which concerns my daughter, as money has been known to pass from me to her.

Some 13 months ago, my daughter received a head injury at her place of work; she had an arterial bleed to her brain-stem which caused problems to the nerves controlling one side of her face. Apart from some psychological aspects, the main problems which she experiences are memory loss, concentration lapses, intermittent facial spasms and the inability at times to make her speech understood. I suggested to her that she should complete the regulations and schedules, marking herself harshly. The result has illustrated some practical anomalies. She is incapable of work according to Part II of the schedule. Fine, let us ignore that. If she were to be assessed purely on Part I, it seems that some areas are open to misinterpretation and others seem to be badly worded. Whether that is intentional or not, I do not know. When severe, her facial spasms make it impossible to understand what she is trying to say. But the wording of Part I, paragraph 10, does not accommodate an intermittent speech problem. It should. After all, the ability to communicate verbally at all times must be a basic requirement of any employment.

I like to think that those of us who are here tonight would experience no emotional difficulty in speaking with somebody who is severely disfigured. We would all admit that the vast majority of people regard disfigurement with shock, horror and disdain. Why is that? It is simply because somebody's physical characteristics differ from the norm. That is what happens. Let us consider such a person seeking employment. The difficulties of overcoming prejudice must be immense, if not impossible. The test does not even mention disfigurement. Yet here is somebody whose physical disability may well make it impossible to find work.

The new regulations are based solely on a person's medically diagnosed condition. Other functional factors which are highly relevant, such as age, education, training and ability, are excluded. Our personalities comprise many factors which distinguish one person from another. To exclude one or more of those would lead to our personality being masked or changed. That is perhaps what is happening here. Not allowing part of a disabled person's ability to be assessed means that the whole picture is being blurred. That is what will happen with these regulations as they are currently presented. There appears to me to be a hint of unfairness here; therefore, the regulations should be withdrawn.

7.51 p.m.

Lord Milverton: My Lords, I enter this debate on the Motion of my noble friend Lord Swinfen in order to join

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in the concern that is expressed by him and others as well as by certain organisations and groups. I look forward to hearing my noble friend the Minister, Lord Mackay of Ardbrecknish, give us—as I hope he will—the assurance that we need. I put this question to him: will there not be the supposed unnecessary casualties when incapacity benefit takes over from sickness benefit and invalidity benefit? These measures are strong and harsh, with the jobseeker's allowance due to come into effect in April 1996. To quote a certain organisation,


    "The proposed introduction of the jobseeker's allowance ... with a tougher regime governing eligibility for benefit is also likely to have an adverse impact on sick and disabled people, many of whom may have been out of the labour market for some years".

I agree that there is perhaps a need for the Government to have taken some action. But is the test too confined? It is purely functional, relating to impairments alone and excluding other personal factors such as the person being able to do reasonable work.

Again, I quote:


    "The new system will be a stark functional assessment with no account of the types of work someone could undertake given their disability and other personal factors".

There is one group that could be heavily hit amongst the many groups with disability; namely, those who suffer from active and progressive forms of inflammatory polyarthritis. Again I quote:


    "People with 'active and progressive forms of inflammatory polyarthritis' are included. Polyarthritis means 'inflamation of several joints at the same time', as in rheumatoid arthritis. But how is 'active' to be defined in this context? Will people with a confirmed diagnosis of rheumatoid arthritis, who at the time of renewing or applying for Incapacity Benefit for the first time, are in 'remission'? Will they be exempt from the functional test?".

What does the term "in remission" usually mean? Remission is usually associated with the successful drug regime for the individuals concerned. It does not mean that the person is not in pain, or that the effects of pain, stress, fatigue and fluctuations are not present on a daily basis. There is concern for people whose diagnosis is of a more generalised nature. As we know, arthritis is the biggest single cause of disability in the United Kingdom.

I do not suggest, as some may, that Her Majesty's Government introduce these regulations in any devious way to get votes. I honour and respect the fact that they are trying to do what is right for the help of all. I do not know how I will vote. I do not feel that I would wish to vote against the Government. If this matter comes to a vote, I shall most probably abstain, as I feel that, in spite of any weaknesses, the Government are doing their best. I hope that the Minister, when he replies, will be able to give that assurance. But I am aware, as I believe the Government are, of the need somehow to get all these matters as right as we possibly can.

7.56 p.m.

Earl Russell: My Lords, this is not a test of incapacity to work. It is at best a test of incapacity to work in certain pre-defined ways which the Department of Social Security happens to have foreseen. If somebody passes this test, I shall not therefore believe that they are capable of work. If they fail this test, I shall not therefore believe that they are incapable of

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work. Having listened to the noble Lord, Lord Swinfen, I have learnt that I am in expert company in so believing.

It was a little ungenerous of the Minister to suggest that the noble Lord, Lord Swinfen, has no concern with the interest of the taxpayer. I am a taxpayer. I have the same concern as anybody else does. But the interest of the taxpayer, like other concerns, is best pursued in a realistic way in the light of accurate information. That is what this test fails to do. To borrow the traditional miners' phrase, I do not want blood on the tax cut.

The Minister said: "We are looking to give benefit to people who are unfit to work because of their medical condition". We are with him in that. He will not achieve that with this test. The Minister also said that people over 50, whose attachment to the labour market is, as we have heard, weaker than that of others, are not unfit for medical reasons. I ask the Minister: when did he last stand at a bus-stop and watch people getting on and off a bus? If he does that, he will see that there is an interaction between age and disability. If two people have an equal disability and one is the older, the one who is older will be the more handicapped by it. Age does have an effect.

Also, as we have heard, it is much harder to learn a new skill—or even, as the noble Lord, Lord Rea, pointed out, to be taught a new skill. We know the difficulty of teaching an old dog new tricks. And we all know that an old dog who suffers an injury may suffer more severely than a young dog who suffers the same injury.

This test tries to test incapacity for work by asking people to fill in a form. Our illnesses are individual. Our incapacities are individual. No test can possibly foresee them all. A test of inability to work must begin bottom upwards, from the individual. One must study the facts of the case, and only then begin to decide whether the person is fit to work.

To take an individual example—it is an actual example—a First World War veteran, shot in the brain, survived, suffering no damage except the total loss of his sense of smell. Under these regulations and the jobseeker's proposals, if that person were to refuse to take work as a wine taster, he would be found not to be actively seeking work—if the Minister shakes his head, I should be very relieved to hear why he does so. This is supposed to be a test of all work.

Let us take another case, again of someone with a brain injury—I heard with great sympathy what the noble Viscount, Lord Simon, had to say—who has lost control of the end joints of his fingers. I am relieved to see that there is a test of manual dexterity. It tests the ability to use a pen or pencil. There is nothing in it about how well one can use a pen or pencil. That is not the way that employers consider the matter and their point of view deserves to be considered.

There can be no acceptable test of incapacity to work until the Government abandon their so-called objective test, which in fact is no such thing, and go back to the beginning with the medical condition of the individual concerned. An objective test is not a test on the right subject. Nor is it true that there is such a thing as a

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single activity known as work. There are a great many different kinds of work and they make different demands on one's medical condition.

Under this scoring system, you have to score 15 unless you are to be found fit for all work. A person who cannot lift a 5 lb bag of potatoes scores eight. Is that person fit for work in a supermarket? Someone who cannot hear well enough to cope with a normal voice in a quiet room scores 10. Is that person fit to be a telephone operator? I could go on but I shall not do so. It is all like that.

I hope that this set of regulations will be withdrawn. It is the worst mistake that the Government have made since the Child Support Act and it will do just as much damage.

8.1 p.m.

Lord Houghton of Sowerby: My Lords, before my noble friend speaks, I should like to say a few words. I do not talk about animals all the time. I have listened carefully to the debate from the beginning. The question of fitness for work is a very old subject within different contexts in the national insurance scheme. It is bound to be a very difficult problem. But it seems that the expenditure on this benefit has risen so quickly and to such a level that the Government have become a little worried about the system.

A definition by which all future cases should be judged and existing cases reviewed was found too difficult to include in the Act. It was found too difficult to legislate on it in the Act. Now it appears that it has been left by the Act to regulations. Those regulations have been published and the noble Lord, Lord Swinfen, has tabled a Motion on them.

On an issue of this kind, where it seems as though the Government are looking to save money, where people may be deprived of benefit probably for the first time for years and where a new concept of disablement and fitness for work is brought into the picture, I must ask whether we are following a satisfactory procedure for deciding the issue tonight. I cannot believe that we are doing so. If we are to alter definitions by regulation and not by Act, we must be perfectly certain that the regulations will stand the full test of justice, common sense, technical sensitivity and sound judgment in human affairs.

What machinery do we have for doing that? Should this matter go to a Select Committee? How do we settle the issue, except by vote tonight? I cannot believe that to decide this matter by vote tonight will be a satisfactory solution for anybody. What then should we do? It seems to me that the Government should withdraw the regulations until we are satisfied that the draft regulations have been fully examined by representative bodies qualified to look at them from the point of view of the public interest, of the disabled persons concerned and of what is sound medical judgment and social justice for the basis of awarding benefit under this scheme. I believe that we should then have to accept the judgment that would come to us from such consideration.

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This is a difficult matter. We know that somebody has to decide the question. The Minister reminded us of that a moment or two ago. But, quite frankly, I do not believe that we are qualified to settle this matter tonight in the name of the House of Lords. The other place must do what it thinks it should do with regulations that come before it. But the question of procedure and fairness in reaching a judgment tonight bears heavily upon us.

In a sense, we have not had a full opportunity to regard this matter as a major policy and political issue. For my own part I plead that it should not be decided this evening. It should come again before the House if necessary. In the meantime, the Government should consider how best to have this problem determined in an acceptable way. Otherwise, I am afraid that many people will be discontented and many people will be deprived of benefits which it will be difficult for them to replace.

Talking about fitness for work in pleasant circumstances is bound to have difficulties. There is not work for everybody, not for those who are fit for work and make no claim upon social benefit. But what about those who are handicapped in looking for work and those who are asked to find work that they have never done before? I know of a case in point which is very close to my own observation. It seems to me that, although you have never done any manual work in your life, you are fit for work as a clerk. That was referred to in the course of the Minister's observations. Obviously, that requires a social as well as a medical and personal judgment.

I cannot say any more. I had no intention today of staying in the Chamber until this hour of night. However, I cannot go away feeling that the House has done a good job of work if the matter is left formally to be decided in a few minutes' time without something sounder and more acceptable to take its place.

8.8 p.m.

Lord Carter: My Lords, I am sure that the Minister will have listened with great interest to that vastly experienced intervention from my noble friend. I am sure that when the Minister comes to speak he will wish to withdraw the regulations.

Perhaps I may begin by pointing out, as the more alert of your Lordships may have noticed, that I am not the noble Baroness, Lady Hollis of Heigham. My name, not hers, should have been on the list of speakers. I apologise for the error.

This has been a most interesting if rather brief debate. We are grateful to the noble Lord, Lord Swinfen, for tabling this Motion and giving us a chance to debate this very important matter, affecting as it does the 1.6 million people on invalidity benefit. Much of the argument has already been most eloquently expressed. I can be very brief therefore. The problems of age, transition, work experience and so on have all been well covered.

Those of us who laboured for many hours on the Social Security (Incapacity for Work) Act will have a strong sense of déjo vu and a clear understanding that our worst fears have been realised. When we debated

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that Bill, the regulations were not available, as the process of consultation and testing had still to be carried out. Now that we have the regulations, it is clear that the guidance notes for the Benefits Agency will be vitally important. It would be helpful if the Minister could tell the House whether the guidance notes that he mentioned, which he said were available last November, are the final edition or whether they are to be further amended.

Previous speakers have dealt with the various problems of definition, procedure and outcome. The best evidence for the ultimate fallacy of relying on a purely medical and functional test lies in the regulations. As to Regulation 27(b) and (c), what sort of test is it that allows somebody to pass the all work test who:


    "(b) suffers from some specific disease or bodily or mental disablement... or (c) ... suffers from a severe uncontrolled or uncontrollable disease"?

Is it the case that Regulation 27 had to be included because the pilot studies found that some people passed the test but were clearly incapable of work? As I say, what sort of functional test is that?

Some of the definitions seem to be positively misleading. For example, Regulation 10 uses the word "severe" no less than five times. Sometimes "severe" is qualified, sometimes it is not—so what is "severe"? At what stage does someone with a progressive disease move from "not severe" to "severe"? Will this be explained in the guidance notes?

The Oxford Dictionary defines severe as "austere", "strict", "harsh", "rigorous", and "unsparing". I have the feeling that those who drafted the regulations for the test had the Oxford Dictionary open and permanently beside them as they worked.

Severe mental illness under Regulation 10(2) (e) (viii), as pointed out by the noble Lord, Lord Mottistone, was added as a manuscript amendment when the regulations were debated in another place. It is an entirely welcome amendment, but its late inclusion—added to the points that I have already made in relation to Regulation 27—illustrate the fundamental weakness of relying entirely on a medical and functional test.

The question of appeals is central. The Government are expecting 140,000 appeals in 1995-96. We are told that the Government are putting more money and resources into the Medical Advisory Service. How much money? How many extra people, and what are their qualifications?

I should ask the Minister an important question in regard to the basis for reviewing new claims after April 1995. Will age be a factor, having now set a control date? What will be the basis for reviewing the cases of the estimated 220,000 people who will come off incapacity benefit "within two years"? Will this be done on their normal review date? If so, it appears that many will come off incapacity benefit within six to nine months and not two years. What will be the basis for reviewing other current claims which come under the transitional regulations—for example, from people aged over 58 or people in the groups exempt from the new functional test?

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I said I would be brief, so I will not repeat questions that have already been asked or give multiple examples. When these regulations were debated in another place on 2nd February there were many excellent speeches on these matters, not least that of Mr. Donald Dewar, the Opposition spokesman on social security. But perhaps the most effective speech was made by Mr. Alan Howarth, the Member for Stratford-on-Avon. Its effectiveness arose from the fact that Mr Howarth is a Conservative with great experience of disability matters. I appreciate that under the rules of your Lordships' House I must not quote Mr Howarth verbatim, but I certainly agree with his belief that the all work test is a contrivance and that the whole idea and objective of a medical test of capacity for work is fundamentally misconceived.

We all know that this is a Treasury-driven exercise. I would remind your Lordships that, as pointed out by the noble Earl, Lord Russell, we have recently had an example of a Treasury-driven foray into social security; I refer, of course, to the nightmare of the Child Support Agency. I was one of the Members of your Lordships' House who were concerned about the Bill that set up the Child Support Agency. We tried endlessly to warn the Government about the likely outcome; the Government would not listen, and our worst fears have been confirmed. We have had also the shambles surrounding the introduction of the Disability Living Allowance. I am sure that these regulations are set fair to become the third member of this sorry troika and, if the noble Lord, Lord Swinfen, decides to ask for the opinion of the House on his Motion, I shall certainly be voting with him.


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